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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 30 April 2002,
Having concluded its consideration of complaint No. 146/1999, submitted to
the Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the
complainant, his counsel and the State party,
Adopts its Decision under article 22, paragraph 7, of the Convention.
Decision
1.1 The complainant is E.T.B., a Georgian citizen, born on 19 March 1974, on
behalf of herself and her two minor children, all three currently residing
in Denmark at the Danish Red Cross Centre for Refugees, where the
complainant seeks asylum for the family. The complainant claims that her
return to Georgia after dismissal of her refugee claim would constitute a
violation of article 3 of the Convention by Denmark. She is represented by
the organization Let Bosnia Live.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the communication No. 146/1999 to the State party on
11 October 1999. Pursuant to rule 108 of the Committee's rules of procedure,
the State party was requested not to expel the complainant to Georgia
pending the consideration of her case by the Committee. In a submission
dated 10 December 1999, the State party informed the Committee that it had
decided to comply with the Committee's request not to expel the complainant
and her children while their complaint is under consideration by the
Committee.
The Facts as Submitted
2.1 The complainant is a widow with two minor children, all Georgian
citizens of Mengrel ethnic origin. In Georgia she and her deceased husband,
M.B., were working for the former Georgian President, Gamsakhurdia (also a
Mengrel), and his political party, the Zwiadists, and for the Mengrel cause
in Georgia. The complainant has been a member of the Zwiadists since
mid-1992, and started nursing wounded Zwiadists after she became a nurse in
1993. Her husband and her father were fighting for the Mengrel partisan
army.
2.2 On 19 November 1993, the complainant was arrested together with 30 other
women, among them her mother, while participating in an illegal
demonstration of about 1,500 persons in her home city Zugditi, against the
Shevardnadze Government. All the arrested women received a collective death
penalty sentence. The prison guards beat them frequently, and five of the
women were executed. Prison guards raped two of her co-prisoners before they
executed them. One of the guards sexually mistreated and raped the
complainant, and she expected to be killed afterwards like her co-prisoners.
However, shortly afterwards, on 31 December 1993, Mengrel partisans attacked
the Zugditi prison and liberated all political prisoners. The complainant's
father was among the attacking partisans. After being released, the
complainant moved with her family to Gegetjkori. Meanwhile, the
complainant's husband lived in a Mengrel partisan camp in the forest nearby.
On 18 August 1994 he was wounded and captured by the Georgian army, and
thereafter executed.
2.3 On 3 February 1996, the complainant, her two children and her mother
left Georgia illegally, by boat to Poland and hidden in a truck to Denmark.
They arrived in Denmark on 12 February 1996. They went immediately to the
police and requested asylum. A year later, the complainant's father also
arrived in Denmark and requested asylum, after a long stay at a hospital in
the Caucasus Mountains. He was not aware that his family was already
residing in Denmark.
2.4 The Danish Immigration Service rejected the complainant's application
for asylum on 22 May 1998. On 31 July 1998 her then counsel appealed to the
Refugee Board. The application was rejected on 4 August 1998, and the
complainant was ordered to leave Denmark on 19 August 1998. Two applications
to reopen the complainant's case, submitted on 17 August and on 29 October
1998/1 December 1998, were refused by the Refugee Board on 23 September 1998
and 26 January 1999 respectively.
2.5 In the Refugee Board decision of 4 August 1998's grounds for rejection,
the Board considered that the attack of the prison on 31 December 1993, if
it really happened, would have been mentioned in the background material
available on Georgia, and that the complainant's father would have mentioned
this attack in his own application for asylum, which he did not do. Even if
basing its decision on the complainant's story, the Board did not consider
that the complainant would be persecuted if returned to Georgia. They
referred to information received from the UNHCR regarding that Gamsakhurdia
partisans are not persecuted only because they have supported Gamsakhurdia.
2.6 In the application of 29 October 1998, counsel requested a reopening of
the complainant's asylum case, in the light of new information he had
received. This information contained two new documents, including a death
certificate for her husband and a declaration from 10 of her neighbours in
Gegetjkori, confirming that the complainant had been threatened and
persecuted by unknown persons, who also killed their dog, leaving it in
front of their door as a warning vendetta. Furthermore, counsel refers to
media reports of new outbreaks between Zwiadists and government forces.
Counsel also submitted Amnesty International's "Concerns for Georgia",
October 1996, including information about torture and ill-treatment of
political prisoners. In the letter of 1 December 1998, he submitted the
complainant's Medical Record dating from her arrival in 1996 and describing
her experiences of being subjected to torture.
2.7 On 22 February 1999, counsel requested reopening of the case on the
basis of two reports from 1997 and 1998, from The International Helsinki
Federation, describing serious human rights violations in Georgia. In
response to the Refugee Board's grounds for rejection, he contended that the
reports show that freedom of expression is restricted in Georgia, and that
it was only in the authorities' interest that the attack of the Zugdidi
prison and escape of prisoners was not published through local media.
Furthermore, although the reports do not describe the demonstration on 19
November 1993, they refer to several similar demonstrations in the periods
prior to and following the demonstration of 19 November 1993. He also
submitted that the complainant's description of the prison conditions is
consistent with the reports. On 8 March, the Refugee Board rejected the
application.
2.8 In May 1999, counsel directed letters about the complainant to 18
members of the Danish Parliament, requesting that they address the Minister
of the Interior and ask that the complainant obtain a residence permit for
humanitarian reasons. Seven members of the Parliament contacted the
Minister, who in turn referred the case to the Refugee Board, which rejected
the request.
The Complaint
3. Counsel claims that the complainant fears that if returned to Georgia,
she will be arrested, tortured and killed for her participation in the
Mengrel political organization Zwiadists, the demonstration that took place
on 19 November 1993, and the effect of her deceased husband's participation
in the Mengrel army. Counsel adds that there exists a consistent pattern of
human rights violations by Georgian authorities, in particular against
political opponents, who risk torture and ill-treatment in prison, and there
is overwhelming reason to believe that the complainant will be subjected to
torture or other inhuman treatment if returned to Georgia.
State Party Observations on Admissibility and the Merits
4.1 In its note verbale of 10 December 1999, the State party submits its
observations to the admissibility and the merits of the case. The State
party submits that the complainant has failed to establish a prima facie
case for purposes of admissibility of the petition, and that the case
therefore should be declared inadmissible.
4.2 The State party contends that the Refugee Board has considered all
aspects of the case, taking into account the State party's obligations under
the Convention, and that no further information submitted to the Committee
against Torture may reveal that the complainant risks torture if returned to
Georgia. It points out that the Committee is not an appellate but a
monitoring body, and that the complainant is using the Committee to obtain a
renewed assessment of her case.
4.3 Concerning the assessment whether there are substantial grounds for
believing that the complainant will be in danger of being subjected to
torture if returned to Georgia, the State party refers to the Refugee Board
decisions in their entirety. The State party emphasizes that according to
background information available, only high-ranking or high profile members
of the Zwiadists are being persecuted, and the complainant did not belong to
this group. With reference to the Committee's jurisprudence in I.O.A. v.
Sweden, [FN1] and N.P. v. Australia, [FN2] the State party argues that it is
important whether information about the recipient country supports the
complainant's allegations that she risks being subjected to torture.
Furthermore, the State party refers to X v. Switzerland, [FN3] where the
Committee emphasized that the applicant "does not belong to a political,
professional or social group targeted by the authorities for repression and
torture".
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[FN1] Complaint No. 65/1997 of 6 May 1998, paragraph 14.5.
[FN2] Complaint No. 106/1998 of 3 June 1999, paragraph 6.5.
[FN3] Complaint No. 38/1995 of 9 May 1997, paragraph 10.5.
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4.4 The State party reiterates that the Refugee Board did not accept the
complainant's story that she had been liberated from detention through an
armed attack, mainly because there were no references to such an action in
their background material. Although the complainant claimed that her father
took part in the attack, he did not mention the attack in his application
for asylum. In this context, the State party refers to the Committee
decision in H.D v. Switzerland [FN4] where the Committee takes into account
whether the complainant's presentation of the facts are considered well
attested and credible.
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[FN4] Complaint No. 112/1998 of 3 June 1999, paragraph 6.4, see similar
statement in Seid Mortesa Aemei v. Switzerland Complaint No. 34/1995 of 29
May 1997, paragraph 9.6.
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4.5 Moreover, the Refugee Board found that even if the detention had taken
place, they did not consider that the complainant risked persecution and
torture if returned to Georgia. According to the State party, this
assessment corresponds with the Committee's jurisprudence in A.L.N v.
Switzerland and X, Y and Z v. Sweden. [FN5]
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[FN5] Complaint No 90/1997 of 19 May 1998, paragraph 8.3, and Complaint No.
61/1996 of 6 May 1998, paragraph 11.2.
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4.6 The State party emphasizes that there is no objective evidence to
support the complainant's claim that she has been subjected to torture,
[FN6] nor has it been established that she is wanted by Georgian
authorities. [FN7] The State party emphasizes that after her liberation, the
complainant moved to the Gegetjkori region and resumed her political
activities, but that she has not alleged any problems with the authorities
while she resided there, [FN8] and that the events that motivated her
departure date relatively far back in time. [FN9]
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[FN6] Reference is made to Complaint No. 65/1997, paragraph 14.3.
[FN7] Reference is made to Complaint No. 94/1997 of 20 May 1998, K.N. v.
Switzerland, paragraph 10.3 and 10.4.
[FN8] Reference is made to Complaint No. 112/1998, paragraph 6.5.
[FN9] Reference is made to Complaint No 27/1995 of 28 April 1997, X v.
Switzerland, paragraph 11.3.
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4.7 The Refugee Board did not attach importance to the declaration of the
complainant's neighbours, explaining that the authorities persecuted her
family by visiting and threatening them, as this allegation was submitted at
a later stage in the asylum proceedings and had not been mentioned in her
previous statements. The State party refers to the Committee's practice that
if a complainant changes his or her account during the processing of the
asylum application, it is important that a logical explanation be given for
doing so. [FN10]
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[FN10] Reference is made to Complaints Nos. 97/1997 of 12 November 1998,
Orhan Ayas v. Sweden, paragraph 6.5, 106/1998, paragraph 6.6, and 104/1998
of 21 June 1998, MBB v. Sweden, paragraph 6.6.
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4.8 The State party also considers it to be consistent with the Committee's
jurisprudence, that due weight be given to the fact that the Convention
against Torture entered into force for Georgia on 25 November 1994. [FNk]
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[FNk] Reference is made to Balabou Mutombo v. Switzerland, complaint No.
13/1993, Decision
adopted on 27 April 1994, para. 9.6, and Tahir Hussain Khan v. Canada,
complaint No. 15/1994,
Decision adopted on 18 November 1994, para. 12.5.
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The complainant's comments on the State party's observations
5.1 In a letter of 7 February 2000, counsel refers to the Committee's
jurisprudence in E.A. v. Switzerland [FN11] stating that it is sufficient
that "'substantial grounds' in article 3 require more than a mere
possibility of torture but do not need to be highly likely to occur to
satisfy that provision's conditions", and contends that the complainant
fulfils this condition.
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[FN11] Complaint No. 28/1995 of 10 November 1997, paragraph 11.3.
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5.2 Regarding the State party's argument that the complainant's father did
not mention in his asylum application that he participated in the liberation
of prisoners, among them the complainant, this is explained by his general
scepticism towards authorities and his mental situation subsequent to his
partisan life.
5.3 Furthermore, the complainant cannot document that she has been subjected
to torture, including rape, as she has not undergone a medical examination
in this regard. Her reluctance to submit this information to the Danish
authorities is explainable by the trauma of such experiences. Counsel quotes
the Committee's jurisprudence in Kisoki v. Sweden [FN12] that "complete
accuracy is seldom to be expected by victims of torture and that such
inconsistencies as may exist in the author's presentation of the facts are
not material and do not raise doubts about the general veracity of the
author's claims".
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[FN12] Complaint No. 41/1996 of 8 May 1996, paragraph 9.3.
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5.4 Counsel submits that although Georgia has ratified the Convention, it is
apparent that, in view of the ongoing persecutions of political opponents,
Georgia is not observing its obligations under the Convention.
5.5 Counsel attaches a letter from the Refugee Board saying that the Board
has decided to reopen the complainant's case because of information that
she, if returned to Georgia, risks deportation to Abkhasia. However, counsel
submits in a further letter of 1 February 2002, that the Refugee Board's
decision of 24 January 2002 was unfavourable to the complainant. It appears
from the Refugee Board's decision that upon a general request from the State
party, UNHCR responded that Georgian citizens upon return do not risk
deportation to Abkhasia.
Decision Concerning Admissibility and Examination of the Merits
6. Before considering any claim contained in a communication, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention. The Committee has ascertained, as it is required to do
under article 22, paragraph 5 (a) of the Convention that the same matter has
not been, and is not being examined under another procedure of international
investigation or settlement. The Committee notes that the State party has
objected to the admissibility of the communication on the ground that the
complainant has failed to establish a prima facie case for the purpose of
admissibility. Considering the complainant's submissions regarding her
membership with the Zwiadists since mid-1992, her participation in different
aspects of their work, her alleged experiences of being subjected to
torture, compared with the existing situation of persecution of political
opponents in Georgia, the Committee finds that the complainant's allegations
have surmounted the threshold of admissibility, and the Committee therefore
proceeds with the examination of the merits of the communication.
7. In accordance with article 3, paragraph 1, of the Convention, the
Committee has to determine whether there are substantial grounds for
believing that the complainant would be in danger of being subjected to
torture if returned to Georgia. In order to do this, the Committee must, in
accordance with article 3, paragraph 2, take into account all relevant
considerations, including the existence of a consistent pattern of gross,
flagrant or mass violations of human rights.
8. However, the Committee has to determine whether the person concerned
would be personally at risk of being subjected to torture in the country to
which he or she would be expelled. Consequently, the existence of a
consistent pattern of gross, flagrant or mass violations of human rights in
a particular country does not in itself constitute a sufficient ground for
concluding that a particular person would be in danger of being subjected to
torture after returning to his or her country; additional grounds must exist
in order to conclude that the person concerned is personally at risk.
9. In the present case, therefore, the Committee has to determine whether
the expulsion of the complainant to Georgia would have the foreseeable
consequence of exposing her to a real and personal risk of being arrested
and tortured.
10. The State party has pointed to inconsistencies in the complainant's
statements, which in its opinion cast doubt on the veracity of her
allegations. The Committee reaffirms its jurisprudence that torture victims
cannot be expected to recall entirely consistent facts relating to events of
extreme trauma. But they must be prepared to advance such evidence as there
is in support of such a claim. The political activities that the complainant
claims to have carried out since she became a member of the Zwiadists, are
not of such a nature as to conclude that she risks being tortured upon her
return. Nor does any of the information provided reveal that the complainant
risks being subjected to torture because of her husband's partisan work and
execution by the governmental forces. This view is further supported by the
fact that the complainant was not the object of interest by Georgian
authorities after she was released from detention in 1993, and until she
left the country in 1996. In this respect, the Committee does not attach
importance to the neighbours' declaration stating that the complainant was
persecuted while residing in Gegetjkori from 1994 to her departure in 1996,
since she did not submit this allegation until 29 October 1998, more than
two and a half years after she lodged her initial application for asylum.
11. On the basis of the above considerations, the Committee considers that
the complainant has not substantiated her claim that she risks being
subjected to torture upon return to Georgia.
12. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, concludes that the removal of the complainant to
Georgia would not constitute a breach of article 3 of the Convention.
* The following members of the Committee participated in the examination of
the case: Mr. Peter Thomas Burns, Mr. Guibril Camara, Mr. Sayed Kassem El
Masry, Ms. Felice Gaer, Sr. Alejandro Gonzalez Poblete, Mr. Andreas
Mavrommatis, Mr. Fernando Mari�o Menendez, Mr. Alexander M. Yakovlev, Mr. Yu
Mengjia.
** Pusuant to Rule 103, paragraph 1 (c), Mr Ole Vedel Rasmussen did not
participate in the consideration of the complaint.
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